Bam Ventures, LLC v. Schifferman

• Decision Date: 19 March 2019
• Docket Number: DA 18-0437
• Citation: 437 P.3d 142,2019 MT 67,395 Mont. 160
• Parties: BAM VENTURES, LLC, a Montana Limited Liability Company, Plaintiff and Appellant, v. Reed P. SCHIFFERMAN and Robin Schifferman and all other persons, known or unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint below which is adverse to Plaintiff's ownership or a cloud upon Plaintiff's title thereto, whether such claim or possible claim be present on contingent, Defendants and Appellees.
• Court: Montana Supreme Court

395 Mont. 160

437 P.3d 142

2019 MT 67

BAM VENTURES, LLC, a Montana Limited Liability Company, Plaintiff and Appellant,

v.Reed P. SCHIFFERMAN and Robin Schifferman and all other persons, known or unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint below which is adverse to Plaintiff's ownership or a cloud upon Plaintiff's title thereto, whether such claim or possible claim be present on contingent, Defendants and Appellees.

DA 18-0437

Supreme Court of Montana.

Submitted on Briefs: January 16, 2019

Decided: March 19, 2019

For Appellant: Zane K. Sullivan, Nathan G. Wagner, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana

For Appellees: John S. Warren, Attorney at Law, Dillon, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 BAM Ventures, LLC (BAM) appeals the order of the Fifth Judicial District Court, Beaverhead County, Montana, granting a preliminary injunction in favor of Reed and Robin Schifferman (Schiffermans). We affirm and restate the issue on appeal as follows:

Did the District Court err by granting a preliminary injunction without a finding of "great or irreparable injury?"

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The facts herein are taken from the record as developed only for purposes of the District Court's consideration of a preliminary injunction. The dispute concerns access to one of two pieces of adjacent property located in Wise River, Montana, owned respectively by BAM and the Schiffermans. In 2003, before improvements were made to the properties, Schiffermans purchased their lot, which then lacked physical access. In 2004, in an apparently fortuitous development, the Montana Department of Transportation completed an improvement project for Montana Highway 43, which ran along the southern border of the properties, and, during the project, added a paved apron extending from the highway toward the border of the properties and installed a "green gate" nearby. Since 2004, Schiffermans have used these improvements to access their lot, and further improved the access by installing an elevated driveway with culverts. In 2005, Schiffermans built a 1200 square foot garage on their lot, and constructed a house there in 2016. They also had a cattle guard installed near the gate. Construction contractors and suppliers used the apron and driveway to access the property. During these years, Schiffermans believed the access was on their lot, and received no objections about its use.

¶3 In 2017, BAM purchased the lot adjacent to the Schiffermans' lot, and uses its property to host disabled veterans for recreational activities. BAM's principal, Noah McMahon, believed Schiffermans' driveway ran across the corner of BAM's property, so he fenced off the driveway with temporary fencing and removed Schiffermans' cattle guard.¹ In response, Schiffermans removed part of BAM's fencing and began driving across an unimproved grass and dirt area to access their driveway. As of the preliminary injunction hearing, Schiffermans had attempted to improve this altered route but found it did not provide comparable access. An expert testified it would take approximately two days and $ 7,000 to build a comparable access across the new route to the existing driveway.

¶4 BAM initiated this action in quiet title to resolve the question of property ownership of the disputed area. The Schiffermans disputed the boundaries allegations in their answer, and counterclaimed for a prescriptively acquired easement over the access route. Schiffermans have acknowledged that "at least a portion" of their property's access is located on BAM's property and, pertinent here, sought injunctive relief under § 27-19-201(1) - (3), MCA, based on their claim of a prescriptive easement, to bar BAM from restricting access to their lot across the original route pending outcome of the litigation.

¶5 After the hearing, the District Court determined Schiffermans had made a prima facie showing of their claim for prescriptive easement, and granted them a preliminary injunction pursuant to § 27-19-201(1), MCA. Although the District Court agreed with BAM's argument that Schiffermans had not established irreparable harm, and that money damages could not be considered irreparable harm, because "money damages may be recovered in an action at law without resort to equity," citing Caldwell v. Sabo , 2013 MT 240, ¶ 29, 371 Mont. 328, 308 P.3d 81, the court reasoned that Schiffermans did not need to establish "irreparable harm" because that requirement was necessary only for preliminary injunctive relief under subsection (2), not subsection (1), of § 27-19-201, MCA.

¶6 BAM appeals.

STANDARD OF REVIEW

¶7 District courts are afforded a high degree of discretion to grant or deny preliminary injunctions. Accordingly, we will not overturn the district court's decision absent a manifest abuse of discretion. "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." Caldwell , ¶ 18 (quotation and citation omitted). However, we review an injunction based on conclusions of law for correctness. In considering whether to issue a preliminary injunction, neither the District Court nor this Court will determine the underlying merits of the case giving rise to the preliminary injunction, as such an inquiry is reserved for a trial on the merits. Caldwell , ¶ 19.

DISCUSSION

¶8 Did the District Court err by granting a preliminary injunction without a finding of "great or irreparable injury?"

¶9 This case turns on reconciliation of seemingly inconsistent statements made in our cases about the standards governing issuance of a preliminary injunction, which the parties' arguments have well pinpointed.

¶10 Section 27-19-201, MCA, provides that a preliminary injunction "may be granted in the following cases:"

(1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;

(2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;

(3) when it appears during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant's rights, respecting the subject of the action, and tending to render the judgment ineffectual;

(4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

(5) when it appears that the applicant has applied for an order under the provisions of 40-4-121 or an order of protection under Title 40, chapter 15.

Section 27-19-201, MCA.

¶11 BAM argues the District Court erred by granting the preliminary injunction in favor of the Schiffermans because they did not show they would suffer irreparable injury, which BAM contends must be demonstrated for a preliminary injunction to be issued under any of the five subsections of § 27-19-201, MCA. In support of their position, BAM cites to Benefis Healthcare v. Great Falls Clinic, LLP , 2006 MT 254, ¶¶ 13-14, 334 Mont. 86, 146 P.3d 714 ; Sandrock v. DeTienne , 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 ; and Davis v. Westphal , 2017 MT 276, ¶ 24, 389 Mont. 251, 405 P.3d 73. In particular, BAM relies on our recent statement in Davis :

[E]ven on proof of any grounds enumerated in § 27-19-201, MCA, a preliminary injunction should not issue absent an accompanying prima facie showing, or showing that it is at least uncertain, that the applicant will suffer irreparable injury prior to final resolution on the merits. Porter [v. K & S Partnership] , 192 Mont. [175] at 181, 627 P.2d [836] at 839 ; Rea Bros. Sheep Co. v. Rudi , 46 Mont. 149, 160, 127 P. 85, 87 (1912).

Davis , ¶ 24 (emphasis in original).

¶12 Schiffermans respond that the District Court did not err by granting a preliminary injunction under § 27-19-201(1), MCA, because they made a prima facie showing of their prescriptive easement claim, which BAM does not contest on appeal, and because a finding of irreparable injury was not necessary under the plain wording of that subsection. They cite our cases holding that "the subsections of this statute are disjunctive, meaning that findings that satisfy one subsection are sufficient." Sweet Grass Farms, Ltd. v. Board of County Comm'rs , 2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825 ; accord Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 15, 319 Mont. 132, 82 P.3d 912 ; Caldwell , ¶ 23 ; Stark v. Borner , 226 Mont. 356, 359, 735 P.2d 314, 317 (1987) (internal quotations and citation omitted).

¶13 Montana courts have managed over the years to address equitable preliminary injunctive relief under the standards of § 27-19-201, MCA, but it has not always been an easy task. The provision was originally enacted as Section 112 of the old Civil Practice Act by the Montana Territorial Legislature, sitting in Virginia City, on December 23, 1867. For historical context, Montana's adoption of the Civil Practice Act occurred contemporaneously with the ongoing impeachment controversy of President Andrew Johnson, about two years after the assassination of President Abraham Lincoln. Remarkably, the entire substantive text of Section 112 remains to this day within § 27-19-201, MCA, constituting the first three subsections of the statute. See 1867 Mont. Laws § 112, at 154. It has been a challenge for courts to interpret and apply the dated language of these provisions consistently.

¶14 However, as we have often recognized, the subsections of § 27-19-201, MCA, are written disjunctively. Demonstration of one, and not all, of the subsections suffices to authorize a court to grant equitable,...